


DEOISIOA^ 



REKDEBED BV 



CHIEF JUDGE DUNLOP, 



DISTRICT OF COLUMBIA, 



PRIZE CASE OF THE SCHOONER "TROPIC WIND." 



i . 



DECISION 



BENDEBED B7 



CHIEF JUDGE DUNLOP, 



U.S. D/'s-tr.'ct Cou^^i 

vnDISTRICT of COLUMBIA, 



PRIZE CASE OF THE SCHOONER "TROPIC WIND." 



WASHINGTON: 

GOVERNMENT FEINTING OFFICE. 
1861. 



Eloo 







DECISION ON THE BLOCKADE. 



DISTRICT COURT OF THE UxNITED STATES FOR THE DISTRICT OF COLUMBIA. 

UNITED STATES ET AL. 

vs. 

SCHOONER "TROPIC WIND" AND CARGO. 



June Term, 1861. — In Admiralty. 



A libel lias been filed by the United States and the captors 
in this court, sitting in admiralty, to condemn as prize the Eng- 
lish schooner " Tropic Wind" and cargo, valued at $22,000, for 
violating a blockade of the ports of Virginia, proclaimed by the 
President of the United States on the 27th April, 1861. 

The capture was made in or near the mouth of James river, 

by the United States ship Monticello, Captain , on the 21st 

May, 1861. The blockade of the port of Richmond, Virginia, 
into which port the " Tropic Wind " had entered before the 
proclamation is alleged to have been made effective on the 
30th April, and notice of it brought home to the captain of the 
"Tropic Wind" and the British Consul at Richmond at least as 
early as the 2d of May. Fifteen days w^ere allowed by the 
United States to neutral vessels to leave the blockaded port of 
Richmond, from the 30th April, the day of the effective blockade. 

It appears that the " Tropic Wind " commenced to load her 
cargo at Richmond, Virginia, on the 13th of May, completed her 



lading on the 14tli May, and sailed from Riclimond the same day, 
bound for Halifax, Nova Scotia. 

Mr. Carlisle appeared for the vessel and cargo, filed the answ^er 
of Captain Layton, and the case has been argued and submitted 
to me on the libel, answer, evidence taken in preparatoria, and 
official documents. 

The authority of the President to institute the blockade is de- 
nied by the respondents, who insist that this power, under the 
Constitution of the United States, can only be exercised by the 
National Legislature. And this is the first question to be con- 
sidered. 

It is true no department of the Federal Government can exer- 
cise any power not expressly conferred on it by the Constitution 
of the United States, or necessary to give effect to granted 
powers ; all others are reserved to the States respectively, or to 
the people. In the second article, second section, of the Consti- 
tution of the United States, is this provision : 

"The President shall be commander-in-chief of the army and navy 
of the United States, and of the militia of the several States when 
called into the actual service of the United States." 

In the war with Mexico, declared by Congress to exist by the 
act of Mexico, (see 9tli Statutes at Large, page 9,) the Supreme 
Court have maintained, in two cases, that the President, ivitliout 
any act of Congress, as commander-in-chief of the army and 
navy, could exert the belligerent right of levying contributions on 
the enemy to annoy and weaken him. In the case of Fleming 
et al. vs. Page, (9th Howard, 615,) the present Chief Justice 
says : 

"As commander-in-chief, he is authorized to direct the movements 
of the naval and military forces, placed by law at his command, and 
to employ them in the manner lie may deem most effectual to harass 
and conquer and subdue the enemy." 

Again, at page 616 : 

"The person who acted in the character of collector, in this 



5 

instance, acted as such under the authority of the military com- 
mander, and in obedience to his orders, and the duties he exacted 
and the regulations he adopted ?yere not tJiose prescribed hy law, but 
by the President in Ms character of commander -in-cliief. The custom- 
house was established in an enemy' s country as one of the loeapons of 
war. It was established not for the purpose of giving the people of 
Tamaulipas the benefit of commerce with the United States, or with 
other countries, but as a measure of hostility and as a part of the 
military operations in Mexico ; it was a mode of exacting contribu- 
tions from the enemy to support our army, and intended also to 
cripple the resources of Mexico and make it feel the evils and the 
burdens of the war. The duties required to be paid were regulated 
with this view, and were nothing more than contributions levied 
upon the enemy, which the usages of w^ar justify when an army is 
operating in the enemy's country." 

The other case to v/hicli I allude is Cross et al. vs. Harrison, 
(16tli Howard, 189, 190.) Judge Wayne, in delivering the opinion 
of the Supreme Court, says : 

"Indeed, from the letter of the Secretary of State, and from that 
of the Secretary of the Treasury, we cannot doubt that the action of 
the military governor of California was recognized as allowable and 
lawful by Mr. Polk and his Cabinet. We think it was a rightful and 
correct recognition under all the circumstances, and when Ave say 
rightful we mean that it was constitutional, although Congress had 
not passed an act to extend the collection of tonnage and import 
duties to the ports of California. California, or the port of San 
Francisco, had been conquered by the arms of the United States as 
early as 1846. Shortly afterwards the United States had military 
possession of all the Upper California. Early in 1847 the President, 
as constitutional commander-in-chief of the army and navy, authorized 
the military and naval commanders of our forces in California to 
exercise the belligerent rights of a conqueror, and to form a civil 
government for the conquered country, and to impose duties on 
imports and tonnage as military contributions for the support of the 
government and of the army, which had the conquest in possession, 
&c. No one can doubt that these orders of the President, and the 
action of our army and navy commanders in California, in conformity 



6 

with them, was according to the law of arms," &c. (See also pages 
191, 193, 195, 196, 201.) 

Blockade is a belligerent right under tlie law of nations 
where war exists, and is as clearly defined as the belligerent 
right to levy contributions in the enemy's country. As the 
Supreme Court holds the latter power to be constitutionally in 
the President, without an act of Congress, as commander-in-chief 
of the army and navy, it follows necessarily that the power of 
blockade also resides with him ; indeed, it would seem a clearer 
right, if 230ssible, because, as chief of the navy, nobody can doubt 
the right of its commander to order a fleet or a ship to capture 
an enemy's vessel at sea, or to bombard a fortress on shore, and 
it is only another mode of assault and injury to the same enemy 
to shut up his harbors and close his trade by the. same ship or 
fleet. The same weapons are used. The commander only varies 
the mode of attack. 

In the 1st article, section 8, clause 11, of the Constitution, 
under the legislative head, power is granted to Congress " to 
declare war, grant letters of marque and reprisal, and make rules 
concerning captures on land and water." These powers are, 
therefore, solely confided to and within the control of the Legis- 
lature, and cannot be exercised by the President. The President 
cannot declare war, grant letters of marque, &c., though all other 
belligerent rights, arising out of a state of war, are vested in him 
as commander-in-chief of the army and navy. But wa?- declared 
by Congress is not the only war within the contemplation of the 
Constitution. In clause 15, article 1, section 8, among the legis- 
lative powers is this : " To provide for calling forth the militia to 
execute the laws of ihe Union, suppress insurrections, and repel 
invasions ;" and the Legislature, in execution of this power, passed 
the act of 1795, (1st Satutes at Large, 424,) vesting in the Presi- 
dent, under the terms set forth in the statute, discretionary power 
over the militia in the cases enumerated in this 15th clause of 
section 8, article 1. ^he status of foreign nations whose provinces 
or dependencies are in revolution, foreign invasions of our own 



country, and insurrection at home, are political questions, deter- 
minable by the executive branch of our government. I refer on 
this subject to the following cases in the Supreme Court of the 
United States. " The Santisima Trinidad," (7th Wheaton, 305 :) 

"This Court has repeatedly decided that it will not undertake to 
determine who are sovereign States, but will leave that question to 
be settled by the other departments who are charged with the ex- 
ternal affairs of the country, and the relations of peace and war. It 
may, however, be said that both the Judiciary and the Executive 
have concurred in affirming the sovereignty of the Spanish colonies 
now in revolt against the mother country. But the obvious answer 
to this objection is, that the Courts following the Executive Depart- 
ment, have merely declared the notorious fact that a civil war exists 
between Spain and her American provinces, and this, so far from 
affirming, is a denial of the sovereignty of the latter. It would be a 
public and not a civil war if they were sovereign States. The very 
object of the contest is to decide whether they shall be sovereign 
and independent or not ; all that the Court has affirmed is, that the 
existence of this civil tvar gave to both parties all the rights of war 
against each other." 

In cases of invasion by a foreign power or insurrection at 
home, in which cases, under the act of 1795, the President may 
call out the militia, the Supreme Court, in 12 Wheaton, (case 
of Martin vs. Mott,) pages 29-30, says it is exclusively with the 
President to decide whether the exigencies provided for have 
arisen. These also are political questions, determinable by the 
Executive alone, and the courts follow that branch of the govern- 
ment. In this case, at page 32, the Supreme Court say: 

" It is no answer that such a power may be abused, for there is no 
power which is not susceptible of abuse. The remedy for this, as 
well as for all other official misconduct, if it should occur, is to be 
found in the Constitution itself." 

Whether insurrection has grown to such a head, has become 
so formidable in power as to have culminated in civil war, it 
seems to me» must also belong, as to its decision, to the same 
political branch of the government. The President, in his procla- 



mations relating to tlie blockade of the ports of the Confederate 
States, calling out seventy-five thousand militia to suppress in- 
surrection and the resistance to the Federal laws, alleges — 

"That nine States have so resisted," and have "threatened to 
issue letters of marque to authorize the bearers thereof to commit 
assaults against the vessels, property, and lives of citizens engaged 
in commerce on the high seas and in the waters of the United States; 
that public property of the United States has been seized, the col- 
lection of the revenue obstructed, and duly commissioned officers of 
the United States, while engaged in executing the orders of their 
superiors, have been arrested and held in custody, as prisoners, or 
have been impeded in the discharge of their official duties, without 
due legal process, by persons claiming to act under authorities of the 
States of Virginia and North Carolina, an efficient blockade of the 
ports of those States will also be established." 

These facts, so set forth by the President, with the assertion 
of the right of blockade, amount to a declaration that civil war 
exists. 

Blockade itself is a belligerent right, and can only legally have 
place in a state of war ; and the notorious fact that immense 
armies, in our immediate view, are in hostile array against each 
other in the Federal and Confederate States, the latter having 
organized a government and elected officers to administer it, 
attest the Executive declaration that civil war exists — a sad war, 
which, if it must go on, can only be governed by the laws of 
war, and its evils mitigated by the principles of clemency en- 
grafted upon the war code by the civilization of modern times. 

Nor does the assertion of the right in the proclamation of the 
19th April, 18G1, to proceed against privateersmen, under the 
laws of the United States, as pirates, militate against the con- 
struction I have above given of the two proclamations as averring 
the existence of civil war. 

In the case of Eose vs. Himely, 4th Cranch, 272-3, Chief 
Justice Marshall, in delivering the opinion of the Court, says : 

"It is not intended [to say that belligerent rights may not be 



superadded to those of sovereignty. But admitting a sovereign, who 
is endeavoring to reduce his revolted subjects to obedience, to pos- 
sess both sovereign and belligerent rights, and to be capable of acting 
in either character, the manner in which he acts must determine the 
character of the act. If as a legislator he publishes a law ordaining 
punishments for certain offences, which law is to be applied by 
courts, the nature of the law and the proceedings under it will decide 
whether it is an exercise of belligerent rights, or exclusivel}^ of his 
sovereign power, and whether the court, in applying this law to par- 
ticular cases, acts as a prize court or as a court enforcing municipal 
regulations." 

In this case I am sitting in admiralty, adjudging a question of 
prize, under a capture, for alleged violation of blockade. 

I do not find, on examination of the writers on public law, any 
difference as to belligerent rights in civil or foreign war, and 
Judge Story, in 7th Wheaton, as heretofore cited by me, says 
they are the same. Blockade being one of the rights incident 
to a state of war, and the President having in substance asserted 
civil war to exist, I am of the opinion that the blockade was 
lawfully proclaimed by the Executive. 

The next inquiry is, when did the blockade become effective, 
and as such come to the knowledge of the respondents or their 
government 1 Notice, actual or constructive, will do. In the 
present case Flag Officer Pendergrast, commanding home 
squadron, officially announced the blockade of the ports of 
Virginia, whose outlet was Hampton Poads, as effective on the 
30th of April, 1861, and the Secretary of the Navy, in his letter 
of the 9th May, 1861, states this notice was sent to the Baltimore 
and Norfolk papers, and by one or more of them published. In 
a certificate of the British consul at Pichmond, dated 14th of 
May, 1861, found on board the "Tropic Wind" at the time of 
her capture, he states he had received an authoritative communi- 
cation of the 11th of May, which he immediately communicated 
to the captains of British merchant vessels and others interested 
in British trade, that fifteen days would be allowed to leave port 
after the actual commencement of the blockade, with or without 



10 

cargoes, " and whether the cargoes were shipped before or after 
the commencement of the blockade," and that upon inquiry he 
found the 2d of May, 1861, to be the day when the efficient 
blockade began. 

There does not appear in the cause any evidence to show that 
the United States Government agreed to relax the law of blockade 
so as to allow British vessels to load cargoes and come out of 
port after knowledge of effective blockade was brought home to 
them. The letter of Mr. Welles to Mr. Seward of date 9th of 
May, 1861, in answer to inquiries of Lord Lyons relative to 
British vessels in Virginia ports, and the operation of the blockade 
upon them, &c., and which it must be presumed was sent to Lord 
Lyons, does not contain the relaxation of the law of blockade 
referred to in the British consul's certificate of the 14th of May, 
1861 ; by which I mean that it contains no permission to British 
vessels to come out of port, within the fifteen days, with cargoes 
laden on hoard after notice of commencement of effective blockade. 
I give an extract from that letter of the 9tli of May, 1861 : 

"Fifteen days have been specified as a limit for neutrals to leave 
the ports after actual blockade has commenced, with or without 
cargo, and there are yet remaining five or six days for neutrals to 
leave ; with proper diligence on the part of persons interested, I see 
no reason for exemption to any.'' 

It also appears in the evidence of the master (Layton) that 
he heard in Richmond of the blockade as effective before he 
began to load his cargo, and was informed it commenced on the 
2d of May. 

All the testimony concurs in showing that the cargo was laden 
on board the " Tropic Wind" on the 13th and 14th days of May, 
1861. No principle of prize law seems better settled than that 
such lading violates the blockade and forfeits both vessel and 
cargo. In " Weldman on Search, Capture, and Prize," page 42, 
the act of egress is " as culpable as the act of ingress ; and a 
blockade is just as much violated by a ship passing outwards as 
inwards. A blockade is intended to suspend the entire commerce 



11 

of the place, and a neutral is no more at liberty to assist the 
traffic of exportation than of importation. The utmost that can 
be allowed, to a neutral vessel is, that, having already taken in a 
cargo before the blockade begins, she may be at liberty to retire 
with it. If she afterwards takes on board a cargo, it is a fraudu- 
lent act and a violation of the blockade. It is lawful for a ship 
to withdraw from a blockaded port in ballast, or with a cargo 
shipped bona fide before notice of the blockade." (See also 
Vrouw Judith, Robinson, 150 ; the Juno, 2d Robinson, 119 ; the 
Nossa Senhora, 5th Robinson, 52.) In Weldman's International 
Law, vol. 2d, page 205, we find this passage : 

" Where the blockade is known at the port of shipment, the master 
becomes an agent for the cargo ; in such case, the owners must at all 
events answer to the country imposing the blockade for the acts of 
persons employed by them ; otherwise, by sacrificing the ship, there 
would be a ready escape for the cargo, for the benefit of which the 
fund was intended." 

(See also the James Cook, Edwards, 261 ; the Arthur, Edwards, 
202 ; the Exchange, Edwards, 40, 1st Kent Commentaries, 2d 
edition, 144, 146 ; Olivera vs. Union Insurance Company, 3d 
Wheaton, Supreme Court Rep., 194. See also Wheaton's note 
to the same case.) 

It follows, upon the case as it now stands, there must be 
condemnation of both vessel and cargo. 

JAMES DUNLOP. 

June 13, 1861. 

N. B. — After I had written this opinion on the proofs and 
papers then before me, but before it was known or copied, I was 
requested by Mr. Carlisle, by note of the 14th, to ask of the 
State Department the whole corre8})ondence, a part of which 
only was in the cause ; and, on Saturday evening, the 15th of 
June, the document A was handed to me. I have formed no 
opinion of the influence this further correspondence has on the 
legal aspect of the case ; and as the parties concerned on both 



sides have had no opportunity to see or comment on it, and may 
wish further proof as to the relaxation by the United States of 
the strict law of blockade, I will allow further proof to be taken 
by either party on this single point, and postpone any decision 
till the proof is in, and the counsel on both sides heard. This 
course is, I l^elieve, consonant with prize practice. 

JAMES DUNLOP. 
June 17, 1861. 

True copy : Test, E. J. Middleton, Clerk. 



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